Scott Hastings Williams v Genopea Resources Pty Ltd
[2023] FWC 1730
•24 JULY 2023
| [2023] FWC 1730 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Scott Hastings Williams
v
Genopea Resources Pty Ltd
(U2023/647)
| DEPUTY PRESIDENT LAKE | BRISBANE, 24 JULY 2023 |
Application for an unfair dismissal remedy – whether a genuine redundancy - application dismissed.
Scott Hastings Williams (the Applicant) brought an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) stating he was dismissed from his employment from Genopea Resources Pty Ltd (the Respondent).
It is undisputed that the Applicant was dismissed on 5 December 2022, and he lodged this application with the Commission on 23 December 2022, within 21-days, as required by the Act.[1] However, an issue arises whether the dismissal involved a genuine redundancy that was not granted to the Applicant.[2]
The Respondent terminated the Applicant’s employment after he had refused to take up a redeployed position following a restructuring by the Respondent. The Applicant contends that the redeployment was not on fair terms, that there was no consultation regarding the change and that there is still work available in his previous position.
The Hearing was held on 3 May 2023 via Microsoft Teams. The Applicant gave evidence on his own behalf. Mr Christopher Slack gave evidence on behalf of the Respondent.
Background
The Applicant worked at the Generator Place as a Part-Time Call Centre/Sales Representative in their Hilcrest office from July 2004 under the previous owners of the Respondent.
The Applicant was on long service leave from July 2022 and was scheduled to return back to work on 9 January 2023.
The Applicant received a letter on 25 November 2022 stating that the Respondent had undertaken a recent review of its operational requirements and provided a redeployment opportunity for the Applicant at the Mower Place at Kenmore as a Permanent Part-Time Sales Representative but may be required to work at the other Brisbane locations from time to time.
If the Applicant did not wish to take up the offer, the Respondent would terminate the Applicant’s employment once he was scheduled to return from his long service leave. The Applicant would not be paid a redundancy as the Respondent states that they were able to find a reasonable alternative position within the group.
The Applicant received a subsequent letter on 22 December 2022 providing the redeployment opportunity again, however offering this on a casual basis after speaking with the General Manager of the Generator Place (Michael Medaris). In this letter, the Applicant was to confirm if this was the arrangement he was seeking in the Mower Place at Kenmore by 5 January 2023, or his employment would be terminated.
The Applicant responded to the letter on 2 January 2023 regarding the offer of redeployment. The Applicant states that he was not notified regarding major workplace changes, there was no guarantee of continued work at Kenmore, the hours were longer and that the Mower Place was a seasonal business with less job security. The Applicant further stated that the redeployment role was a demotion as he would have gone from a senior role to a simple entry level shop assistant. The Applicant had rejected the offer of relocation and had sought a full redundancy payment per his award.
On 6 January 2023, the Respondent had confirmed that the Applicant was terminated for not accepting the redeployment offer.
The Applicant argues that he should have received a redundancy as the redeployment offer was not suitable and is seeking a redundancy payment with any unpaid entitlements. Alternatively, the Applicant is seeking compensation for his dismissal.
The Respondent argues that they went through the proper redundancy process and found suitable alternative employment. As the Applicant did not accept the alternative employment, the Applicant was dismissed on the basis that the Applicant’s role at the Generator Place was no longer required because of operational requirements.
Legislation
Section 390(1) of the Act sets out the circumstances in which the Commission may grant a remedy by way of reinstatement or compensation for unfair dismissal. It provides:
390 When the FWC may order remedy for unfair dismissal
(1)Subject to subsection (3), the FWC may order a person’s reinstatement, or the payment of compensation to a person, if:
(a) the FWC is satisfied that the person was protected from unfair dismissal (see Division 2) at the time of being dismissed; and
(b) the person has been unfairly dismissed (see Division 3).’
However, s.396 of the Act sets out a number of matters which the Commission must consider before turning to the merits of an unfair dismissal application. It provides:
396 Initial matters to be considered before merits
The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
1.whether the application was made within the period required in subsection 394(2);
2.whether the person was protected from unfair dismissal;
3.whether the dismissal was consistent with the Small Business Fair Dismissal Code;
4.whether the dismissal was a case of genuine redundancy.
Before determining the dismissal, I consider two issues that need to be considered before the merits is to determine whether the dismissal was a case of genuine redundancy.
Section 389 of the Act defines genuine redundancy for the purposes of s.396 as follows:
(1) A person’s dismissal was a case of genuine redundancy if:
(a) the person’s employer no longer required the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
(b) the employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy.
(2) A person’s dismissal was not a case of genuine redundancy if it would have been reasonable in all the circumstances for the person to be redeployed within:
(a) the employer’s enterprise; or
(b) the enterprise of an associated entity of the employer.
Was the Applicant made genuinely redundant?
The Applicant raised that he wishes to seek a redundancy payment. I consider whether there has been a genuine redundancy before determining the redeployment offer and subsequent termination.
Did the Applicant’s employer no longer require the Applicant’s job to be performed by anyone because of operational requirements of the employer’s enterprise?
In considering a whether there has been a reorganisation or redistribution of duties, it is pertinent to consider whether the employee has any duties left to discharge.[3] Where there is no longer any function or duty to be performed by an employee, his or her position becomes redundant even where aspects of that employee’s duties are still being performed by other employees.[4]
Hamberger SDP considered this issue in Kekeris v A. Hartrodt Australia Pty Ltd T/A a.hartrodt[5] and established that the test is whether the previous job has survived the restructure or downsizing, rather than a question as to whether the duties have survived in some form. In Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488, the Full Bench considered and applied the decision of Ryan J in Jones v Department of Energy and Minerals (1995) 60 IR 304 and said:
[17] It is noted that the reference in the statutory expression is to a person’s “job” no longer being required to be performed. As Ryan J observed in Jones v Department of Energy and Minerals (1995) 60 IR 304 a job involves “a collection of functions, duties and responsibilities entrusted, as part of the scheme of the employees’ organisation, to a particular employee” (at p. 308). His Honour in that case considered a set of circumstances where an employer might rearrange the organisational structure by breaking up the collection of functions, duties and responsibilities attached to a single position and distributing them among the holders of other positions, including newly-created positions. In these circumstances, it was said that:
“What is critical for the purpose of identifying a redundancy is whether the holder of the former position has, after the re-organisation, any duties left to discharge. If there is no longer any function or duty to be performed by that person, his or her position becomes redundant…” (at p.308)”
This does not mean that if any aspect of the employee’s duties is still to be performed by somebody, he or she cannot be redundant (see Dibb v Commissioner of Taxation (2004) FCR 388 at 404-405). The examples given in the Explanatory Memorandum illustrate circumstances where tasks and duties of a particular employee continue to be performed by other employees but nevertheless the “job” of that employee no longer exists.
‘Operational requirements’ is a broad term which encompasses present performance of the business, the state of the market in which the business operates, steps which may be taken to improve efficiency by installing new processes, equipment, or skills, by arranging labour to be used more productively or the application of good management to the business.
The Respondent asserted that there had been a downturn in sales and revenue. The Respondent was entitled to take steps to ensure the continued performance of his business and identified they could redeploy the Applicant while ensuring that their business remains operational.
The Applicant asserted that there was ongoing work in his existing role with a sales role/national trade show execution in the Browns Plains location meaning that his role was not redundant. However, this role was not the one which the Applicant had, and the Respondent states the Applicant did not express interest in the other sales role, which required extensive interstate travel. The Applicant’s role at the Generator’s place was not refilled indicating that his duties were no longer required to be performed at that location.
Therefore, the Applicant’s role was no longer required due to the Respondent’s changed operational requirements.
2.Did the Respondent comply with any obligations in a modern award or enterprise agreement that applied to the employment to consult about redundancy?
The obligation on an employer to consult about redundancy only arises when a modern award or enterprise agreement applies to an employee and that modern award or enterprise agreement contains requirements to consult about redundancy. There is no legislative requirement to consult about the redundancy before a decision is made to make an employee redundant.
The relevant award in this matter is the General Retail Industry Award 2020 which sets out the requirements for consultation regarding major workplace changes under clause 34. The Employer must have promptly raised the changes in the operation of their workforce or job restructuring under clause 34.4 and clause 34.5. The Respondent was required to consult the Applicant.
The evidence provided by the Respondent demonstrated that this had been followed. There had been two communications with the Applicant outlining the decision and reasons for the reasons for redeployment. The Applicant did have conversations with a number of managers although he disputes there was any consultation occurring. The Applicant was invited in each of the letters to discuss the impact and the opportunity made available with the Respondent. The Applicant did raise in one of the conversations with a manger that he might be interested in casual work which the Respondent considered. The Respondent did not wish to lose the Applicant’s skills and identified a practical solution.
I am satisfied that the employer met their obligations regarding consultation under the Award (GRIA). The two emails offering redeployment and the subsequent phone conversations satisfy the requirements. I understand that the employee was on long service leave for the initial period and the employer could have waited for his return to schedule a meeting to discuss the impact and alternatives that the employee might have proffered. However, this is a smaller sized business and the impetus for change meant that the Respondent was moving to restructure the business and did not have a lot of time for an extensive consultation period.
3.Was it reasonable in all the circumstances for the person to be redeployed within, (a) the employer’s enterprise; or (b) the enterprise of an associated entity of the employer?
In Helensburugh Coal Pty Ltd v Bartley[2021] FWCFB 2871 reaffirmed the rules of redeployment set out in Pettet and Ors v Mt Arthur Coal Pty Ltd[2015] FWC 2851 as succinctly encapsulating the relevant considerations in relation to s.389(2)(a) of the FW Act as follows:
“The principles concerning the interpretation and application of s.389(2) have been stated in two Full Bench decisions, Ulan Coal Mines Ltd v Honeysett and Technical and Further Education Commission t/a TAFE NSW v Pykett. Those principles were summarised in Huang v Forgacs Engineering Pty Limited as follows:
(1) The exclusion in s.389(2) poses a hypothetical question which must be answered by reference to all of the relevant circumstances.
(2) The question is concerned with circumstances which pertained at the time of the dismissal.
(3) In order to conclude that it would have been reasonable to redeploy the dismissed person, the Commission must find, on the balance of probabilities, that there was a job or a position or other work within the employer’s enterprise (or that of an associated entity) to which it would have been reasonable in all the circumstances to redeploy the dismissed employee.
(4) A number of matters are capable of being relevant in answering the question, including the nature of any available position, the qualifications required to perform the job, the employee’s skills, qualifications and experience, the location of the job and the remuneration which it offered.”
The available position that was offered to the Applicant was closer in location to his residential address and was the same renumeration. The question is whether the Applicant had the skills, qualifications and experience of the role. The Respondent states that the Applicant was suitably qualified and experienced for the new role.
The Applicant states the redeployment was unsuitable:
as he had limited knowledge of products and experience in the role when he filled in at the Mower Place business occasionally.
the employees working at the Mower Place have extensive small engine knowledge.
he was discriminated with his upcoming retirement.
the Applicant had worked from the Company’s inception and that his knowledge and experience was extensive in the original location rather than the redeployed role.
the Applicant did not feel confident with the proposal of training as he had never received formal training in his existing role and had learnt everything on the job.
In considering the circumstances of whether the role was suitable redeployment, I consider the below factors as suitable redeployment:
A.The location of the new role was closer to the Applicant’s residence.
B.The hours of work remain the same.
C.The Applicant had extensive in sales. The redeployed role was a sales role.
D.There is no change in renumeration. The Applicant does not receive any commissions or bonuses based on sales.
E.The Applicant had worked in the Mower Place before (as a fill-in).
It is acknowledged that the Applicant had concerns learning new products before his retirement, which is why he had felt discriminated. However, the sales job at the Mower place did not require him to quickly upskill or train.
The Applicant had worked periodically at the Mower place when staff were not available through illness or leave. He was not unfamiliar with the product lineup at the Mower place and although he expressed some concerns regarding his limited technical and knowledge skills, the Respondent was open to providing any further training the Applicant may need to become fully proficient in the role. The Respondent made it clear that he valued the Applicant’s skills and knowledge and wanted to retain him in the business.
The Applicant raised concerns with potential safety issues. The Applicant asserted that mowers had a higher risk profile than generators and he was concerned that he did not possess the requisite knowledge to advise potential customers on the mower products. However, the Respondent contended that there was excellent product training available, and he would have been open to identifying any gaps in knowledge and assisting in finding ways to provide further training opportunities to the Applicant. Furthermore, Applicant had concerns that the Mower place was a seasonal business, and that his role was uncertain. It is to be noted that the Applicant was offered a permanent part-time role and that he would have still had set hours despite any seasonality of the business.
The above factors indicate that the role was not a significant demotion, or a demotion in general. I am satisfied that redeployment was available and provided to the Applicant in this instance and the employer had fulfilled their obligations under s.389(2).
Was the dismissal harsh, unjust, or unreasonable?
Section 387 of the Act provides the criteria and considerations the Commission must take into account when deciding if the dismissal was hash, unjust, or unreasonable.
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that the FWC considers relevant.
The Applicant was not dismissed based on their capacity and conduct, nor did it relate to unsatisfactory performance.[6] The Applicant was notified that he would be terminated if he did not accept redeployment on the basis that there was no longer an available role for him in the original office he worked at. The Respondent does not have a dedicated human resources specialist.
The Respondent had consulted the Applicant regarding any accommodations to work in the redeployed location and had adjusted their initial redeployment offer to meet the Applicant’s requests. The redeployed location would be closer to where the Applicant had lived, the Applicant had previously completed several shifts at the Mower Place and was familiar with the products offered. He had good sales skills, and the Respondent offered further training or assistance to the Applicant in order that he felt fully competent in the new role.
Other factors I do take into consideration are the Applicant’s years of service and age. The Applicant had worked in this role for 18 years and had worked with the current Respondent for a year. The Applicant is also nearing retirement age. I do consider there to be some harshness in the dismissal. I also acknowledge the Applicant’s concerns of being retrained regarding the redeployed position, and the potential uncertainty it caused. However, it is difficult to ascertain whether the Applicant genuinely had these concerns without him attempting to work at the redeployed role.
The Applicant did not accept the redeployment offer and the Respondent did not have an alternative position for him. The Applicant was not ready or willing to continue the employment relationship unless it was his pre-existing role which was no longer required. At the date of the hearing, the redeployed role was still made available for the Applicant.
The Respondent had provided another role for the Applicant which he did not accept and therefore had no other option but to dismiss him.
Conclusion
In assessing the criteria under s387 of the Act, I am not satisfied that the Applicant demonstrated that dismissal was harsh, unjust or unreasonable. As a result, this Application is dismissed, and I Order accordingly.
DEPUTY PRESIDENT
Appearances:
S. Williams appearing self-represented
C. Slack appearing on behalf od the Respondent.
Hearing details:
Brisbane
3 May 2023
Hearing via Microsoft Teams
[1] Fair Work Act 2009 (Cth) s.394.
[2] Ibid s.396.
[3] Jones v Department of Energy and Minerals [1995] IRCA 292 (16 June 1995), [(1995) 60 IR 304 at p. 308 (Ryan J)]; cited with approval in Ulan Coal Mines Limited v Howarth and others [2010] FWAFB 3488 (Boulton J, Drake SDP, McKenna C, 10 May 2010) at para. 17, [(2010) 196 IR 32].
[4] Ibid.
[5] [2010] FWA 674.
[6] Fair Work Act 2009 (Cth) s387(a)-(c), (e).
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